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German influencer fights back against the German competition watchdog on the rules of influencer advertising
BlogMediaWrites

As previously reported by MediaWrites, the rules on influencer advertising in Germany are strict – something that influencers don’t like much. Recently, the German competition watchdog “Verband Sozialer Wettbewerb” (engl.: “Association for fair and social competition”) successfully filed for a preliminary injunction against 15 Instagram posts by the German influencer Cathy Hummels on the grounds that she had failed to disclose the commercial nature of the posts.

Hummels filed an appeal against the preliminary injunction and asked the regional court of Munich for a judgment. While the judgment has not yet been published, several German newspapers, including the “Süddeutsche Zeitung”, attended the oral hearing and reported that the judge agreed with Hummels and found that 14 of the 15 Instagram posts (which all included # and @ references to several brands) didn’t need to be marked as advertising – because she had purchased the products herself. This is a new distinction in the German influencer court decisions.

Cathy Hummels’ arguments

Cathy Hummels’ lawyers argued that being an influencer is (one of) her job(s). This job requires regular posts on social networks in order to maintain and expand her number of followers, which is key to an influencer’s success. In particular, the influencer needs to create a particular image that brand owners want to exploit for their marketing.

In line with her job requirements, Cathy Hummels argued that 14 out of the 15 posts were in fact not sponsored, but rather she had bought the products that were shown herself. Those posts were unsponsored and shared in line with her general strategy to create a particular brand image. The product displayed in the 15th Instagram post was given to Hummels for free. All 15 posts were otherwise identical: all included # and @ references, links to the brands and showed Hummels with the products.

Hummels explained that she marks all sponsored posts using “Werbung” (Engl.: advertising) as the very first element of any post, though she admitted that she had forgotten to disclose the sponsoring of the 15th post. Conversely, she stated that she does not mark non-sponsored posts as advertising because those posts are made for the purposes of promoting her personal brand and not third parties.

The judge’s findings in the oral hearing

While the judge is cited as having skepticism regarding an influencer’s job, she found that the public is undoubtedly aware of what an influencer is and what they do. In particular, users of Instagram would know that an influencer’s presence on social media is founded on a “general commercial interest”.

The judge’s opinion is (most likely) based in § 5a (6) German Unfair Competition Act and the corresponding Art. 7 (2) of the UCPD Directive: The commercial intent of any commercial practice needs to be disclosed in cases where the commercial intent is “not obvious”. The judge of the Munich court found that the “commercial intent” in the 14 non-sponsored posts was the influencer’s intent to create and maintain her follower base. This particular intent should be obvious to any follower.

The judge continued that the 15th post (the one where Hummels had failed to disclose the sponsoring) should have been disclosed as advertising, because the sponsoring was not made obvious to her followers. This is in line with previous decisions in influencer cases.

What’s next in the Hummels case?

Due to German procedural rules and because the 15th post was not disclosed as being sponsored, the preliminary injunction was upheld in its entirety. Nevertheless, the judge made it clear that she would have decided in favour of Hummels had the 15th post not been sponsored. It is understood that the influencer and the German competition watchdog intend to continue the main proceedings.

Influencers, brand owners, advertising agencies and followers all have an interest in having clear regulations for influencer advertising (and the disclosure of sponsored posts). A recent Instagram post by Hummels makes it clear that she is willing to fight for detailed legal guidelines to be given by the Federal Court of Justice. Until then, influencers are best advised to disclose as much as possible.

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